Oct. 16, 2012
WASHINGTON — A federal appeals court’s decision to toss the conviction of Osama bin Laden’s former driver could have implications for future prosecutions of terrorism suspects.
The driver, Salim Ahmed Hamdan, was detained by U.S. troops in Afghanistan in November 2001 and sent to Guantanamo. In the first U.S. military war crimes trial since World War II, a jury of six military officers found Hamdan guilty in 2008 of providing material support to terrorism and sentenced him to five and a half years in prison.
But the U.S. Court of Appeals for the District of Columbia on Tuesday threw out that conviction, stating in a 3-0 decision that material support for terrorism was not proscribed as an international war crime until Congress passed the Military Commissions Act in 2006. Since Hamdan worked for bin Laden from 1996 to 2001, he cannot be punished retroactively, the court concluded.
“Indeed the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime,” wrote Judge Brett Kavanaugh.
"If the government wanted to charge Hamdan with aiding and abetting terrorism or some other war crime that was sufficiently rooted in the international law of war at the time of Hamdan’s conduct, it should have done so," Kavanaugh wrote.
Hamdan’s legal vindication is the latest challenge to the controversial war courts set up by President George W. Bush’s administration after the terrorist attacks of Sept. 11, 2001. The Yemeni driver also was at the center of a landmark 2006 Supreme Court case that struck down the war courts as unconstitutional, forcing the Bush administration to revise the system and try again.
Tuesday’s decision dealt another blow to the war courts by upending material support for terror as an offense triable by military commission.
Hamdan’s attorney, Joe McMillan, a lawyer with Seattle-based Perkins Coie, said he regards the ruling as a victory for the American justice system.
“We see it as an important statement that the U.S. must conform to the rule of law as it goes forward, even in times of perceived national emergency,” McMillan said.
Although the ruling will help clear his client’s name, it’s probably more important to the American legal tradition than to Hamdan, he said. “It’s long been deemed unjust to hold a person criminally liable for conduct that was not recognized as criminal at the time it occurred,” he said.
The decision is likely to be reviewed by the Supreme Court, even though the nation’s highest court has been reluctant to review Guantanamo detainee cases in recent years, said Eugene R. Fidell, who teaches military justice at Yale Law School.
“Above all, the decision shows how important it is to have civilian courts review decisions of the military commission and the Court of Military Commission Review,” Fidell said. “The fact that the decision overturns a commission case demonstrates that the regular federal courts can be a bulwark against government overreaching.”
The decision also is significant in its rejection of Congress’s claim that material support for terrorism was an offense under the law of nations even before the Military Commissions Act of 2006, he said.
“If and when the Supreme Court considers the case we will know more about the interplay between the legislative and judicial branches in determining what is and what is not forbidden by the law of nations,” Fidell said.
The material support of terrorism charge is the lynchpin of many cases against people accused of acting as lower-level operatives for al Qaida and other terrorist organizations. One alternative is to charge them with Aiding the Enemy. Alternatively, prosecutors could attempt to charge them with conspiracy, which is harder to prove because it requires evidence of knowledge and consent. The military jury acquitted Hamdan of conspiracy in 2008.
Hamdan was born in Khoreiba, Yemen, in 1968. Osama bin Laden hired him as a personal driver in Afghanistan in 1996, according to an affidavit Hamdan submitted about his work history.
After his capture in Afghanistan, Hamdan arrived in Guantanamo in 2002.
He was first charged in July 2004, but a federal judge in Washington halted the trial. In June 2006, the U.S. Supreme Court ruled in Hamdan v. Rumsfeld that the war courts set up the Bush administration were unconstitutional and violated the Geneva Conventions as well as military law.
The original charges against Hamdan were dropped, but the government filed new ones in May 2007 after Congress passed the Military Commission Act. Bush signed the act into law in 2006.
On Aug. 6, 2008, a military panel at Guantanamo convicted Hamdan of providing material support for terror. At trial, there was no evidence that Hamdan knew in advance of the 9/11 attacks, but that he had heard bin Laden discuss them afterward.
Hamdan was given credit for time served and transferred to Yemen to complete his sentence. He was released in January 2009. A father of four, he now works as a taxi driver.
Hamdan continued to battle his U.S. war crimes conviction, which was upheld by the newly created Court of Military Commission Review last year.
“He asked us to pursue the appeal even though he was out of confinement because the rule and the principle applies to so many others similarly situated as he was,” said Harry Schneider, one of his attorneys.
Contacted in Yemen on Tuesday, Hamdan declined to comment, citing legal advice.
Hamdan is one of seven detainees convicted in the military commission system at Guantanamo. Five of them pleaded guilty.
The only case other than Hamdan’s that went to trial was that of Ali Hamza Ahmad Suliman al-Bahlul, an al Qaida propagandist who was accused of making a video celebrating the bombing of the USS Cole. Al-Bahlul was prosecuted but refused to mount a defense. A military jury convicted him of conspiracy, solicitation to commit murder and providing material support for terrorism in October 2008.
Al-Bahlul’s appeal is awaiting a hearing date before the D.C. circuit court that tossed Hamdan’s conviction.
The conspiracy charge could be subject to the same vulnerability as the materials charge in that it did not exist as an international war crime prior to 2006, legal experts say.
“Conspiracy will likely be the next domino that falls,” said Wells Dixon, senior attorney at the Center for Constitutional Rights in New York. “So for the Obama administration to persist with military commissions – specifically to persist with charges like conspiracy – is essentially a gamble.”
More people have died at Guantanamo than have been convicted by military commission, Dixon said.
“I think that the Hamdan decision is an omen of things to come in the commission system,” he said. “I think you will see challenges to whether other offenses are law of war offenses, including conspiracy, murder, and violation of the laws of war and so forth. . . . How that will play out in the long run is very uncertain.”
David Hicks' conviction terror could be overturned
October 17, 2012 10:28AM
A TERRORISM conviction against Australian David Hicks could be overturned after a US appeals court dismissed the case against a former prisoner in a similar situation.
Mr Hicks's former lawyer Dan Mori said this morning his client's case could be repealed in light of the ruling that found material support for terrorism was not an international-law war crime before 2006.
"It would be great if it was recognised that what David Hicks was put through was unfair," Mr Mori told ABC News 24.
Mr Mori said he hadn't spoken with Mr Hicks directly but said "I think he's hanging in there".
"It's been emotionally draining (for his family)," he said.
In a 3-0 ruling, the US appeals court overnight threw out the case of a former driver for Osama bin Laden who was sentenced to five and a half years prison.
Conviction of Osama's driver thrown out
Terror mastermind in secret trial
The court ruled that Salim Ahmed Hamdan, who was involved with Bin Laden from 1996 to 2001 could not be charged with material support for terrorism because it had not been deemed an offence until 2006.
Terry Hicks, Mr Hicks's father, said his family felt vindicated by the ruling.
"It should (clear David Hicks's name)," he told ABC News 24.
"It makes me feel a lot better, I think it would make David feel a lot better and the people who have supported David over the years can now say this is what we've been fighting for."
Mr Hicks was held in the Guantanamo Bay detention camp from 2001 to 2007 and charged under the Military Commissions Act of 2006 for providing material support for terrorism.
He took part in paramilitary training at Al Farouq training camp in Afghanistan during 2001.
Entrepreneur Dick Smith, who donated $60,000 to Mr Hicks in 2007 for his legal defence, told The Australian he hoped the former prisoner would get his day in court.
"This does confirm what I’ve always believed and that is that he was coerced to sign the agreement to get out of Guantanamo Bay and I would still like him to get the advantage of proper due process," Mr Smith said.
"What I’ve always wanted is for David to be before a jury or a judge."
Mr Smith said he doubted if Mr Hicks would have the money to appeal his conviction, and said he would not provide any further financial support because he was "helping other people".
"I would love to see him have a day with some due process," Mr Smith said.
"I am not a supporter of David Hicks, I’m a supporter of giving him a proper trial. So anything that gave him a proper trial I would support and I think he has never had a proper trial."
Opposition legal affairs spokesman George Brandis told The Australian he wanted Hicks to make it clear that he would indeed appeal his conviction before commenting on if such a move would be likely to succeed.
“I have seen no evidence at all to suggest that Hicks’s admission of guilt was anything other than an orthodox plea bargain within the American system,” Senator Brandis said.